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courts to inquire into the constitutionality of statutes for the purpose of adjudicating law suits.11

§ 13. The subject of the criticism and agitation has usually been the refusal of courts, on constitutional grounds to enforce statutes which limit freedom of contract and other individual rights of liberty and property for the purpose of safeguarding the not less important common rights of the people and their paramount collective or corporate rights.

§14. That our Legislatures have constitutional power to limit individual rights for such purposes has never been questioned and is indisputable.

§ 15. If there be any absolute constitutional limitation of the power it still remains to be discovered. Does anybody doubt that our Legislatures may constitutionally exact the most extreme sacrifices of the properties and the liberties and the lives of individual men to meet the conditions of a flood, famine, earthquake, pestilence, conflagration, riot, rebellion or hostile invasion; and reasonable sacrifices to meet the conditions of crime, insanity, arrested development, ignorance, sloth, destitution, vagabondage, quackery, perverted and degenerate habits, corruption of morals, fraudulent and covinous practices, debasement of the coinage, debasement of market standards of value, knavish accountings, a rack-rented tenantry, usuries, mortmains, primogenitures, entails, monasteries and other incorporated and unincorporated perpetuities, peonage, grossly oppressive contracts, monopolistic cornerings of the neces

11 See platforms of the Progressive and Socialist parties and the Report of the Committee on the Duty of Courts to Refuse to Execute Statutes in Contravention of the Fundamental Law, presented to the New York State Bar Association at its Annual Meeting January 14, 15, 1916, and signed by Henry A.

New

Forster, 76 William street,
York City; Everett P. Wheeler, 27
William street, New York City;
Charles H. Beckett, 135 Broadway,
New York City; Frederick D. Col-
son, State Educational Building, Al-
bany, N. Y.; Everett V. Abbot, 45
Cedar street, New York City.

saries of life or of banking and credit facilities, or of the sites, materials, instruments and facilities of production, transportation, communication and trade; and, generally, to meet the conditions of all sorts of contrivances for promoting a manifestly unfair, unjust and dangerous distribution of property and concentration of its ownership and power in a few hands? Certainly in the great majority of cases the constitutional limitation of this legislative power is not absolute, but is strictly related to the existence and exigency of facts inimical to the general welfare. If facts of that nature do not exist the legislature is without power to abridge individual rights. If such facts do exist the legislature has power to enact laws abridging individual rights so far as may be necessary and proper for counteracting the effect of those facts.

§ 16. Plainly, therefore, the question of the constitutionality of a statute abridging individual rights is not one of pure law to be determined by a mere inspection and interpretation of the statute. The question cannot be answered till it is known whether there are any facts inimical to the general welfare, and, if so, in what degree they harm or menace the general welfare. In whom does the Constitution vest the power of deciding whether facts of that kind exist, and, if so, in what degree they harm or menace the general welfare? Plainly in the legislature. The power to decide these matters must be lodged somewhere, and inasmuch as the Constitution has not vested it in either the executive or the judiciary, it must necessarily belong to the legislature.

17. In ascertaining and determining the existence of such states of fact the legislature is not limited by the Constitution to any particular mode of proceeding. It does not have to give a hearing to anybody except its own members and the chief executive. It does not have to proceed upon the sworn testimony of witnesses having personal knowl

edge of the facts. It does not have to make or record any finding of fact. Each member of the legislature is free to base his vote on any knowledge or information or belief, however acquired, which convinces him. The Constitution requires only that the conclusions of the legislature as to what must be done in view of the facts as they appear to its members shall be put into the form of a written statute.

§ 18. On the other hand, in passing upon the constitutionality of such a statute the courts are strictly limited in respect of the facts which they are entitled to take into consideration. No judge may act upon facts peculiarly within his personal knowledge. He is supposed to know what everybody knows, but aside from this he can take no account of any facts save only such as are admitted by the parties to the lawsuit before him and such as, having been put regularly in issue by those parties, are proved by legal evidence and, if the lawsuit is one at common law, found by a jury. He has no power of his own motion to institute any inquiry as to what the special facts were upon which the legislature, or any legislator, acted in enacting the statute; and the parties to the lawsuit have no right to put those facts in issue and to have their existence tried out by court or jury. In short, controversies as to facts of that kind are not litigable or justiciable in any lawsuit. No member of the legislature can even be questioned about them for the purpose of invalidating his individual vote or for the purpose of invalidating the collective act of the legislature.

19. Necessarily, therefore, the power of the court to decide the statute to be unconstitutional must be limited in such a way as to make it impossible for a statute, based upon a solid foundation of actually existing fact known to the legislature, to be lawfully rendered inoperative by the court's ignorance of that state of facts and its inability to acquire a knowledge of that state of facts. What is the limitation?

§ 20. The phrase "judicial power" is not a happy one for denoting the power of courts. The word "judicial" in its broad sense and as very generally understood connotes the idea of the exercise of the faculties of observation, discrimination and judgment. The exercise of those faculties is not peculiar to or in any way specially characteristic of courts. They must be exercised by executives and by legislators. They must also be exercised by the individual man for the conduct of his personal affairs within his field of liberty. Whenever the law vests the right of decision as to any matter in a natural person or in a government official other than the courts, the courts are ordinarily bound by the judgments of those other persons.

§ 21. To amplify:

Not all controversies are justiciable. Not all matters involving the exercise of the mental faculties of observation, discrimination and judgment are committed by the law to the courts for determination. It is probable that a detailed survey of the whole field of human conduct would show that in the great majority of cases the courts are bound by law to accept the judgment of other officials or of unofficial persons and to base their action thereon, regardless of what their own opinions may be.

Who is the judge? Who has the right of decision? Is it the court, or is it some other tribunal or person? These are fundamental questions of jurisdiction which are expressly or implicitly involved in all controversies which come before the courts for adjudication. If the law vests the right of decision as to any subject in some tribunal or person other than the courts, the decision as to that subject of that other tribunal or person is ordinarily binding upon all courts, and they have no function to perform in regard to it except to enforce it. For example: the law makes the individual man the judge (in all ordinary matters) of what contracts he will enter into or be bound by. Ordinarily the court has nothing to do except to ascertain whether a con

tract has been made, and what its meaning is, and then enforce it; it would be usurpation for any court to assume to decide any of the questions which the parties to a contract have the right to decide for themselves. For another example: the law ordinarily makes the owner of property the judge of what disposition ought to be made of it after his death, provided he expresses and evidences his judgment and will in a certain way. Ordinarily the courts have nothing to do except to ascertain what the testator's judgment and will are, and then carry them into effect. So also the law vests the right of decision as to many most important questions in the legislative or the executive departments of government; as to such questions, the court has ordinarily nothing to do but to ascertain what the decision of the lawful judge is, and then enforce it. These are the general principles of the jurisdiction of courts. They are qualified in part, but only in part, and only in certain cases, by the further principle that it is for the courts to decide whether other tribunals have exceeded their jurisdiction by acting on a subject not committed to them; but, in exercising this special and difficult jurisdiction, the issue which the court has to pass upon is the issue of excess of power, and not the questions or matters which, as original questions, the law committed to some other tribunal or person for decision.

That these principles have a solid foundation in reason has never been questioned, and is manifest. Without them, and without a loyal submission to them, judges of courts would become the most dangerously lawless of men. Nobody's life, liberty or property would be safe.

Except through inadvertence, or when blinded by erroneous preconceptions, so that they lose their bearings, judges and courts always do recognize them and use them as guides of their official conduct.12

12 Martin v. Mott, 12 Wheat. 19;
U. S. v. Arredondo, 6 Pet. 691;
Williams v. Suffolk Ins. Co., 13
Pet. 415;

Rankin v. Hoyt, 4 How. 327;

Luther v. Borden, 7 How. 1;
Warren v. Van Brunt, 19 Wall.

646;

Quinby v. Conlon, 104 U. S. 420;
Fussell v. Gregg, 113 U. S. 550;

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